Sunday, March 4, 2001: Elderly Care Put To Test

Cecil Dellinger woke up early on June 20, 1999, walked out of Room 160 of his Winter Garden nursing home and, unseen by staff members, wandered out an exit door.

Dellinger, a 94-year-old patient with acute dementia, never returned.

Three days later, police found Dellinger barely alive. The former Ohio steelworker strayed into a salvage yard next to Quality Health Care Center and lay down in the gutted engine compartment of a junked car. His exposed skin cooked in the June sun and on the superheated metal, leaving second- and third-degree burns over 24 percent of his body. He lived another 31 days before dying of a blood infection caused by his wounds."No living being deserves such a death," said Dellinger's son, George.

Now George Dellinger is suing the nursing home, which says it wouldn't have admitted his father had it known he was prone to wander.

The Dellinger case is part of an explosion of lawsuits in recent years that accuse Florida nursing homes of neglecting and, in many cases, killing their residents.

The litigation boom underscores a crisis in health care for Florida's oldest, frailest and most vulnerable residents. Nursing-home chains are filing for bankruptcy protection. Insurance companies are pulling out of the state. And the Florida Legislature is poised to consider a law that would strictly limit damage awards against nursing homes.

The industry cries that it is being run out of business by a flood of frivolous lawsuits, but a four-month investigation by the Orlando Sentinel and South Florida Sun-Sentinel found the vast majority of the lawsuits in Central and South Florida are anything but frivolous. Hundreds of the lawsuits accuse nursing homes of ignoring festering sores that lead to infections and amputations, doing nothing to prevent falls that snap brittle bones and failing to treat malnutrition and dehydration that can result in death.

Nursing-home residents are being sexually assaulted, physically abused by staff, neglected and given improper medical treatment, the newspapers found in their review of the 924 lawsuits filed against facilities in Central and South Florida during the past five years.

Nearly half the suits claim residents died at the hands of the nursing homes.

The newspapers counted 231 suits in 2000 alone -- an increase of 157 percent compared with the 90 suits filed in 1996. The rise was even more striking in Central Florida, where the number of suits more than tripled -- to 66 in 2000 from 20 five years earlier.

Advocates for the elderly contend that simply limiting nursing-home suits -- but not addressing the serious problems of long-term care -- leaves Florida's oldest residents even more at risk of injuries and death.

"Don't discuss tort reform with us when people are still being abused, neglected and dying in nursing homes," said E. Bentley Lipscomb, AARP's Florida director.

QUICK FIXES NOT LIKELY

Beneath the lawsuits lies a host of financial and quality-of-care problems that have plagued the nursing-home industry for years.

So many parts of the state's health-care system for the elderly are broken that a cure to Florida's nursing-home crisis won't come quick or easy.

Among the newspapers' findings:

Staffing levels at some nursing homes are low, increasing the odds that overworked caregivers will make mistakes. Pay is generally low, too, which causes turnover among nursing-home workers. At one nursing home in South Florida, John Franzen died because no one helped him to the bathroom. The 86-year-old retired carpenter fell in the bathroom doorway, broke his hip and died three weeks later.

"There were no people to help him," said his daughter, Nancy Burkett, who is suing the home. "They were too busy." The nursing home's attorney asserts that its staff cannot give one-on-one care all the time and cannot restrain residents.

Florida's regulatory body, the Agency for Health Care Administration, rarely fines or closes bad nursing homes and has little power to correct recurring quality problems. The agency has revoked the licenses of only eight nursing homes since 1995.

Few affordable alternatives to nursing homes exist, driving into institutions thousands of seniors who, with proper care, could still be living at home. That's because most state and federal funding programs will not pay for alternatives such as at-home care and elder day-care facilities.

The nation's largest for-profit chains caused many of their own financial problems by accumulating mountains of corporate debt -- $5 billion of it in the early 1990s -- to finance aggressive expansion plans. Yet nursing-home advocates continue to blame financial problems on lawsuits and high insurance premiums -- an assault, they say, that has forced six of the state's largest chains into bankruptcy-court protection.

Medicaid and Medicare reimbursements often are too low to cover the cost of caring for the sickest patients, causing some facilities to cut corners and withhold crucial care. Nursing homes lose $15.74 a patient every day, and 82 percent of homes last year didn't get enough Medicaid money to cover expenses, according to an industry association.

A small cadre of lawyers is cashing in on the growing crisis, more often than not winning out-of-court settlements on a legal playing field that the nursing-home industry thinks is unfair. Nearly half of the 924 suits reviewed by the papers came from the 10 busiest firms, including two from Orlando.

It is this surge in legal action that is getting the greatest scrutiny in Tallahassee as the Legislature begins its 2001 session Tuesday.

In what is expected to be the most volatile issue in the session, Gov. Jeb Bush and some key lawmakers are pushing to limit the size of lawsuits.

But simply curbing lawsuits will do virtually nothing to seriously address one of the most critical issues facing Florida and the nation: finding a humane way to care for society's frailest seniors as the huge baby-boomer population ages.

"The challenge we are going to face in long-term care in 20 to 25 years is acute," said Donna Cohen, chairman of the Department of Aging and Mental Health at the University of South Florida. "It's going to have the impact of a meteorite."A $143 MILLION 1ST STEP

For now, Bush is seeking approval to spend $143.1 million toward improving quality at nursing homes and developing alternatives such as at-home care and community-based senior centers.

But a bill introduced last week by state Sen. Ginny Brown-Waite, R-Spring Hill, gave only a slight nod to quality improvements by proposing a boost to the state's minimum staffing levels to two hours of care per day per patient from 1.7 hours.

In a blow to trial lawyers, the bill's main focus is capping damages in lawsuits against nursing homes.

For residents to recover punitive damages, they would have to prove that negligence was "motivated solely by unreasonable financial gain" and that their injuries resulted from "conduct actually known" by the nursing home's administration.

Critics say such a strict standard would make it virtually impossible for injured residents to punish nursing homes for even the most severe cases of abuse or neglect.

If it became law, Brown-Waite's plan would be a big victory for the nursing-home industry, which says Florida's litigious environment has driven premiums for liability insurance to unaffordable levels -- in some cases rising a thousand-fold in just a year or two.

Dozens of nursing homes have been dropped outright by insurers and are scrambling to find new coverage.

Some nursing-home owners say they have had to raise monthly fees for residents as much as $200. And homes that cannot afford inflated premiums are going without liability insurance, hoping the next lawsuit won't put them out of business.

On the other side of the battlefield stand the lawyers, who take in millions of dollars annually from settlements and jury verdicts. They say capping lawsuits would allow nursing homes to elude responsibility for mistreating residents.

Those most affected, though, are the thousands of sick and frail who live in Florida's 679 nursing homes, 254 of which are in Central and South Florida.

Some want to guard their right to sue should they be mistreated. Still others wonder if the industry's warning of nursing-home closures is rhetoric or an omen.

"These are our homes," said Dee Williams, a 78-year-old resident of Orlando Lutheran Towers, a nursing home and retirement community. "If someone was wanting to take your home away, you'd be worrying too."

Trial lawyers have seized on a Florida law called Residents' Rights. Passed by the Legislature in 1976, the law was meant to guard seniors in nursing homes by guaranteeing them broad protections.

The law gave residents and their families the ability to sue for violations of any one of 33 rights, such as freedom from mental and physical abuse, to more vaguely written standards such as the right to be treated with dignity.

To win a jury trial, lawyers no longer had to prove the nursing home acted negligently, as they do with most other types of personal-injury cases. Proof that one of the Residents' Rights provisions was violated made a successful suit much more likely.

Nursing-home officials -- and even some trial lawyers -- say that makes many lawsuits impossible to defend.

"If you are a plaintiff's lawyer and you have photos of bedsores, you know right away that you can't lose," said Lynn Wagner, an attorney at Rumrell, Wagner & Costabel in Orlando who has sued nursing homes. "Everyone on both sides knows that, if it goes to a jury, it doesn't matter that they tried to prevent the bedsores. The bottom line is, there are supposed to be no bedsores, period."

SOME WANT LAW REWORDED

To counter the legal assault, nursing-home lobbyists last year asked Florida legislators to reword the Residents' Rights law to make it more difficult to sue.

But they found few lawmakers had the political stomach to repeal protections for the state's most vulnerable citizens, particularly in an election year.

So they switched to a plan that appeared to be more politically palatable: capping the size of legal judgments against nursing homes.

"It became very evident very fast that [rewording the statute] simply wasn't doable because of the political viability of the whole issue," said Ed Towey, a spokesman for the Florida Health Care Association, which represents Florida nursing homes.

According to the Sentinel and Sun-Sentinel's survey, there is little evidence that trial lawyers are using Residents' Rights to clog courts with frivolous cases.

Serious allegations abound in the suits, which often accuse nursing homes of causing more than one injury.

A LITANY OF PROBLEMS

Half of the 924 lawsuits contained allegations of bedsores, a third cited infections and a quarter discussed falls.

The more-serious examples:

Carol Sears sued Beverly Rosemont Health Care Center in Orlando, claiming her husband, Gary, drowned in the tub after being left unattended by staff. The case, filed in 1998, is pending in state Circuit Court in Orlando. In response to the suit, Beverly Rosemont said Sears was healthy enough to bathe himself.

Jennifer Schaefer accuses Mariner Health Care of Conway Lakes in Orlando of leaving her quadriplegic mother, Cornelia Jurek, alone while she smoked a cigarette. Jurek suffered third-degree burns when the cigarette dropped from her mouth and ignited her clothes. She died two days later. The case, filed in August, also is pending. Mariner said Jurek was responsible for the fire that caused her injuries.

Maxwell Wells sued Ocoee Health Care Center, claiming that his wife, an Alzheimer's patient, was sexually assaulted by another resident, William Long, after being allowed to wander the facility. The nursing home said it was not responsible for the actions of Long, who was arrested and charged with sexual battery but died a short time later. The suit was settled for an undisclosed sum.

While Residents' Rights has proven a handy tool for trial lawyers, a possible violation of the law isn't always enough to persuade a firm to take a case.

Consider Maxine Wakefield, 72, who entered a Central Florida nursing home in October to recuperate from hip surgery. Despite her limited mobility, Wakefield said, she was never bathed in her two-week stay. When she complained, a nurse handed her a bucket of water, but no soap or towel, and told her to bathe herself, Wakefield said.

More egregiously, Wakefield said, the incision on her hip broke open when she was left on a toilet one night for more than three hours.

Wakefield said she contacted several law firms about filing a suit but was told repeatedly that her injuries were not extensive enough.

Turning away cases with the least potential for profit is just good business, lawyers say. Nursing-home lawsuits are expensive -- trial lawyers say they can shell out anywhere from $20,000 to $150,000 for private investigators, expert witnesses and depositions, depending on the complexity of the case.

"We can't afford to take frivolous cases," said Melvin Wright, an attorney at Morgan, Colling & Gilbert, an Orlando firm that leads the region in suits against nursing homes.SETTLEMENT COMMON

Despite advantages that the Residents' Rights provisions appear to give plaintiffs, trial lawyers say they rarely pass up an opportunity to settle.

Juries in any kind of personal-injury case can be fickle, leaving a chance plaintiffs could lose or be awarded a fraction of what they could have gotten in a settlement.

So many lawyers urge clients to settle rather than roll the dice on a jury, Wright said. "Quite often, it's a matter of convincing the clients to settle rather than place their fate in the hands of six strangers," he said.

Indeed, of the 924 lawsuits reviewed by the newspapers, only six went to trial. Meanwhile, 440 settled out of court, while 30 were dismissed by judges, 15 were dropped and the rest are pending.

Defense attorneys have their own reasons for avoiding trial. One is that Residents' Rights forces facilities that lose in court to pay the plaintiff's legal fees, which often total hundreds of thousands of dollars.

Another problem: Their main defense -- that many of the illnesses that afflict the elderly are not preventable -- is often impossible to prove.

That's because there is little medical consensus on whether a host of ailments found in nursing homes, such as bedsores, dehydration and malnutrition, are even preventable.

Take bedsores. Many nursing-home doctors, nurses and aides argue passionately that some seniors' skin can become so frail that nothing can stop it from breaking down. For example, diabetics and people with circulatory problems are extremely susceptible to sores, they say.

"You can turn these people every hour, and you could still get a pressure sore," said Dr. Braxton Price, staff physician at the Ruleme Center, a nursing home in Eustis.

But others say the vast majority of sores could be avoided with proper vigilance by nursing-home staffs.

LAWYERS PROSPER

The majority of settlements are confidential, but those that were disclosed showed the plaintiffs and their lawyers still profited handsomely. Settlement amounts were made public in 56 of the cases found by the newspapers, with a total payout of $17 million.

Lawyers can receive as payment nearly half of the settlements they negotiate. For example, Wilkes and McHugh -- one of the first firms to successfully sue Florida nursing homes -- recently made $320,000 from an $800,000 deal with Coral Reef Nursing and Rehabilitation Center in Miami. The suit claimed Ernestina Torres died from injuries caused by multiple falls.

With so much money to be made, law firms expend considerable energy ensuring that the stream of new suits never runs dry. Wilkes & McHugh regularly conducts seminars to teach lawyers how to break into the business.

And Morgan, Colling & Gilbert partner John Morgan can seem omnipresent, his face staring from newspaper and magazine ads, billboards, even the back of phone books.

Despite the altruistic message in law firms' ads, some trial lawyers privately admit they would leave the business if the Legislature capped lawsuits and the money dried up.

"If they pass tort reform, I'll go find something else to do," said one prominent lawyer, who did not want to be identified.

One of Morgan, Colling & Gilbert's billboards stands six miles east of the Ruleme Center on U.S. Highway 441. To the handful of Ruleme staffers who drive past it on their way home, the sign serves as a nightly slap in the face, a mocking reminder that law firms grow richer each day by suing nursing homes just like Ruleme.

"If I thought I wouldn't go to jail, I'd climb up there and tear it down," Linda Raupp, a licensed practical nurse at Ruleme, said of the sign.

Raupp, like many nursing-home workers, says lawyers unfairly target the industry. She thinks limiting the size of lawsuits is a good idea.

But don't tell that to George Dellinger, who must live with the memory of his father lying helpless in the engine compartment of an abandoned car. To him, the controversy over capping lawsuits is personal.

"This is about accountability and responsibility and the betraying of a trust," said Dellinger, whose suit is pending in state Circuit Court in Orlando.

"Our system calls for payment of money as punishment when prison time is not warranted. If you take away this right to sue a nursing home, to hit them in their wallets, then those facilities are not accountable to anybody."